ZACHARY HERMAN, PETITIONER V. UNITED STATES OF AMERICA
No. 90-5505
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit
Brief For The United States In Opposition
OPINION BELOW
The memorandum opinion of the court of appeals (Pet. App. 1-5) is
not reported.
JURISDICTION
The judgment of the court of appeals was entered on May 15, 1990.
The petition for a writ of certiorari was filed on August 13, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether under 18 U.S.C. 844(e) the government must prove that a
defendant intended to carry out his threat to damage property with
explosives, or whether it is sufficient to simply show that the threat
was serious.
STATEMENT
After a jury trial in the United States District Court for the
District of Nevada, petitioner was convicted of threatening to destroy
property by means of explosives, in violation of 18 U.S.C. 844(e). He
was sentenced to 10 months' imprisonment, to be followed by three
years' supervised release. The court of appeals affirmed petitioner's
conviction but remanded for resentencing (Pet. App. 1-5).
The evidence at trial showed that in a telephone conversation with
a contract officer at Nellis Air Force Base, Las Vegas, Nevada, in May
1988, petitioner threatened to crash the base's gate the next morning.
Petitioner also said, "I'll have enough explosives on me to blow up
the Goddamn base." Pet. App. 1. That conversation was the result of a
dispute between petitioner and the Air Force over the ownership of
several copy machines. Petitioner had had a contract with the Air
Force to lease and service some one hundred copy machines at Nellis
Air Force Base. However, petitioner chose to terminate the contract,
and in May 1988 the Air Force put out a request for bids. Under the
terms of the request, the copy machines were to be turned over to the
last contractor to hold the contract. Petitioner disputed this
provision, claiming instead that the machines belonged to him. When
the Air Force contract administrator did not accede to petitioner's
position, petitioner made the threat that resulted in his conviction.
Pet. 3-4.
At trial, the district court instructed the jury that one element
of a Section 844(e) offense was that the spoken words be a "true
threat." The court defined a "true threat" as "a serious threat as
distinguished from words uttered as mere political argument, idle
talk, or jest." The court rejected petitioner's claim that the jury
should be required to find that he intended to carry out his threat.
Pet. 5-6.
Petitioner renewed his challenge to the jury instructions on
appeal. Relying on its previous decision in United States v. Nusz,
462 F.2d 617 (1972), the court of appeals rejected that claim. The
court held that 18 U.S.C. 844(e) does not require an instruction that
the defendant actually intended to carry out his threat, or that the
defendant intended his statement to constitute a threat. The court
also rejected petitioner's argument that, because his case did not
involve a threat against the President, the government should bear a
greater burden of proof. Pet. App. 2-3. /1/
ARGUMENT
Petitioner again contends (Pet. 7-11) that the district court
should have instructed the jury that, in order to convict him, it had
to find that he intended to carry out his threat. Contrary to
petitioner's claim, the decision below is correct and is in accord
with the views of the overwhelming majority of the courts of appeals.
Only the Fourth Circuit has ruled otherwise, but that decision was
rendered in 1970. Every court of appeals facing the issue since has
rejected the Fourth Circuit's views, and this Court has denied review
of those decisions. There is no reason for a different result here.
Section 844(e) prohibits using the mail, telephone, or other means
of commerce to "willfully make() any threat, * * * concerning an
attempt or alleged attempt being made, or to be made, to kill, injure,
or intimidate any individual or unlawfully to damage or destroy any
building, vehicle, or other real or personal property by means of fire
or an explosive." The language concerning a prohibited threat is
closely related to two other statutes: 18 U.S.C. 871, which prohibits
threats against the President, and 18 U.S.C. 876, which covers
extortionate threats. In its previous decision in United States v.
Nusz, 462 F.2d at 618, the Ninth Circuit applied cases interpreting
Section 871 in formulating the government's burden of proof under
Section 844(e). The Tenth Circuit likewise has followed decisions
under Sections 871 and 876 in holding that the government does not
have to establish under Section 844(e) that a defendant had the actual
capability to carry out a threat. United States v. Leaverton, 835
F.2d 254, 256-257 (10th Cir. 1987).
In Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam),
the Court held that to establish liability under Section 871, a threat
must be shown to be a "true 'threat'", rather than one that simply
involved an expression of "political hyperbole." The courts of appeals
have applied Watts's "true threat" requirement to all three federal
threat statutes. Although Watts did not determine what the
"willfullness" element of the statute required, id. at 707-708, with
but a single exception, the courts of appeals have uniformly held that
none of those statutes requires proof of intent to carry out the
threat. E.g., United States v. Glover, 846 F.2d 339, 343-344 (6th
Cir.), cert. denied, 109 S.Ct. 533 (1988); United States v. Hoffman,
806 F.2d 703, 707-708 (7th Cir. 1986), cert. denied, 481 U.S. 1005
(1987); United States v. Merrill, 746 F.2d 458, 462 (9th Cir. 1984),
cert. denied, 469 U.S. 1165 (1985); United States v. Dysart, 705 F.2d
1247, 1256 (10th Cir.), cert. denied, 464 U.S. 934 (1983); United
States v. Callahan, 702 F.2d 964, 965 (11th Cir.), cert. denied, 464
U.S. 840 (1983); United States v. Carrier, 672 F.2d 300, 306 (2d
Cir.), cert. denied, 457 U.S. 1139 (1982); United States v.
Pilkington, 583 F.2d 746 (5th Cir. 1978), cert. denied, 440 U.S. 948
(1979) (all interpreting Section 871); United States v. Khorrami, 895
F.2d 1186, 1192-1193 (7th Cir. 1990); United States v. Costello, 760
F.2d 1123, 1127-1128 (11th Cir. 1985); Martin v. United States, 691
F.2d 1235, 1240 (8th Cir. 1982), cert. denied, 459 U.S. 1211 (1983);
United States v. DeShazo, 565 F.2d 893, 894 (5th Cir.), cert. denied,
435 U.S. 953 (1978) (interpreting Section 876); see also United
States v. Velasquez, 772 F.2d 1348, 1357-1358 (7th Cir. 1985), cert.
denied, 475 U.S. 1021 (1986), and United States v. Maggitt, 784 F.2d
590, 593-594 (5th Cir. 1986) (similarly construing 18 U.S.C. 1513).
The lone exception to that uniformity is the Fourth Circuits
decision in United States v. Patillo, 431 F.2d 293 (1970). There, the
court of appeals held that under Section 871 a threat that was not
actually communicated to the President was criminal only if the
speaker made the threat with "a present intention to do injury to the
President." Id. at 297-298. Because petitioner did communicate his
threat to a contract officer at Nellis Air Force Base, the principle
applied in Patillo is not applicable here; thus, this case does not
present a square conflict with the decision of the Fourth Circuit.
But this Court's review would not be warranted even if such a conflict
existed. No other circuit has followed Patillo in the many years
since that decision, and this Court has frequently denied certiorari
in such instances. See United States v. Glover, supra; United States
v. Hoffman, supra; United States v. Merrill, supra; United States v.
Dysart, supra; United States v. Callahan, supra; United States v.
Carrier, supra; United States v. Pilkington, supra; Martin v. United
States, supra; United States v. DeShazo, supra. Petitioner has not
demonstrated any reason why there should be a different result here.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Acting Assistant Attorney General
LOUIS M. FISCHER
Attorney
SEPTEMBER 1990
/1/ The court of appeals accepted petitioner's claim, however, that
the district court had erred in failing to state on the record its
reasons for not decreasing petitioner's offense level by four levels,
pursuant to Sentencing Guidelines Section 2A6.1(b)(2). Accordingly,
the court of appeals vacated petitioner's sentence and remanded to the
district court with directions that the court make findings on the
controverted levels. Pet. App. 4-5.